Adding Sex Offender Probation Conditions After Sentencing Not Permitted
Last week, the 2nd District Court of Appeals in Florida ruled that adding special sex offender conditions to probation after sentencing, where those conditions were expressly excluded at sentencing, doesn’t fly.
In Jones v. State, Fla: Dist. Court of Appeals, 2nd Dist. 2018, the court reversed a lower court’s order that allowed the State to impose special conditions of sex offender probation on Jones, when those conditions were not part of his sentence.
At Jones’ plea hearing and sentencing, it was agreed that “there had been no actual victim under age eighteen and sex offender probation conditions required in cases involving minor victims would not apply”. Nonetheless, upon his release from prison, probation tried to impose special conditions of sex offender probation on him. The lower court allowed them to.
The appellate Court, however, relying on Burkhart v. State, 974 So. 2d 1203, 1204 (Fla. 1st DCA 2008)., which held “Because probation is considered a sentence in Florida, an enhancement or extension of the conditions of probation after the conclusion of the sentencing hearing generally constitutes a violation of the double jeopardy prohibitions of the United States and Florida constitutions.” did not allow it and reversed.
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Something interesting here is that it appears as though 2DCA’s (as well as State’s) interpretation of how F.S. 948.30 (“Additional terms & conditions for certain sex offenses”) is written, those conditions of 948.30 that are specific to offenses where victims are 18 years old or younger do not apply unless an actual victim exists:
“The parties’ plea agreement exempted Jones from sex offender probation conditions that are required when the victim was under the age of eighteen.”
If correct, this would mean that any sting-related offense where there wasn’t an actual victim would preclude the enforcement of:
The 1,000 residency restriction (FS 948.30(1)(b));
The “no contact with a child” restriction (FS 948.30(1)(e));
The prohibition of being in places like parks, playgrounds, etc. where “children congregate” (FS 948.30(4)(a));
The prohibition of distributing candy on Halloween, etc. (FS 948.30(4)(b))
Nevertheless, in just about every sting-related conviction I’ve come across where SO probation was part of the sentence, DOC interprets 948.30 based on the language of the of violated statute. It doesn’t matter if there wasn’t an actual victim. If the “victim” was under the age of 18, you’re not exempt from the enforcement of those conditions listed above. Wondering if this ruling now requires DOC to circulate a memo clarifying this issue? Please note, I am not suggesting that anyone on SO probation for a sting-related incident willfully violate their probation. I’m just positing the question if whether or not these conditions are applicable to one’s sentence if the victim was “believed to be a minor” rather than an actual minor?
What the “sting” cases do is convict a person of an attempt (specific intent crime) in a case where the actual completed crime is a strict liability crime. The only factor is whether or not the victim was underage, not what you knew or should have known, believed, tried to do,etc. In these attempt cases, there is no victim and there is no underage person. Totally different crime. The weird question is what would happen if you were taking to someone on line who you THOUGHT was 15 and was actually 20 and weird and you met this person and had sex? Yeah, that’s how secrecy these attempt laws are.
I feel it it is a brunch of crap.According to some articles I have read on this website Some States and even Some Federal Courts say it is Violation of our Consitution,then on the other hand,It is not a violation. I feel as a person who has two sex conviction. One is a romeo and juliet I was 19 and my other girlfriend was 15.and the six months later when my older girlfriend found out I cheated on her made up lies.I served my time I can not get one off of me because of the other.I been clean 7 yrs now.There should be a brench mark in all states. A 10 year mark that a person can petition a court to be removed. 25 yrs is too long and only if you have one conviction. It is bullcrap!!! If I had money for private Attorney the outcomes would have been different
I was given regular probation by the sentencing judge yet I still had to do the sex offender probation. I think the probation statute reads that if convicted for certain sexual offenses, those rules must be followed – which I thought at that time it meant that even if it wasn’t pronounced at sentencing, the law is the law and it must be followed. There were many RSO’s marked with sex offender probation and just a couple with just ” probation ” which meant regular probation. I went back to court during my probation just to clarify and the same judge said ” yes, regular probation which was read by the clerk. Even if DOC marked me with ” regular probation ” I had to do the extras. So stupid, but whatever, I’ve been long done with it.
Well that’s the same what happened to me in 91,I get 3 years probation registry wasn’t even around even the judge let me leave the state for college while on probation and the college accepted me but now I’m on this thing for life even the judge told me after 3 years it’s over no restrictions or nothing then comes this registry if I didn’t have family I would just leave Its the same Anyway and say after day it gets worse and we aren’t finished yet before long watch a rso will have a chip of something just watch I say everyone who got sentences before the registry ought to just go against it all im tired and my family is also
Sex offender registration is also part of a convicted defendant’s sentence. Those hypocrites should apply the law equally there as well. It is exactly the same legal principle.
Exactly right !!!. All this “REGISTERY”: crap was ADDED on me AFTER my conviction date !!!!. This case SHOULD be all we need to challenge the”Registery” and it’s Ex Post Facto clause !!!. The courts just ADMITTED it’s ILLEGAL !!!.
No, in the instant case, the person was EXPRESSLY TOLD he would not have to do sex offender probation when sentenced. At sentencing, it was part of the agreement that he would not have to and then they tried to go back on that agreement. Please don’t jump to conclusions.
The sex offender registry is non punitive according to the nit wits, the add ons in this case would be considered punitive. That’s why the court decided with the offender.
Bruce,
That’s NOT why.
The appellate court decided with the defendant because the sentencing court expressly told him that he would not be subject to sex offender probation conditions.
No, sex offender registration is NOT part of a convicted defendant’s sentence. That would make it punishment. Sex offender registration is a non-punitive administrative scheme (so said the SCOTUS in Smith v. Doe) and therefore is not part of a criminal sentence, at least not in Florida or in the fiction carved out in Smith v. Doe.
i can’t find this case yet on the web, what was his original charge?
DAVID JOHN JONES, Appellant,
v.
STATE OF FLORIDA, Appellee.
Case No. 2D17-267.
District Court of Appeal of Florida, Second District.
Opinion filed July 13, 2018.